Judge furious at “inexcusable” P2P lawyering, nukes subpoenas

Attorneys in one of the largest file-sharing cases in the US never even served …

There are three quick steps to angering a federal judge: first, launch the country's largest file-sharing lawsuit against 23,322 anonymous defendants, even though most of them don't live where you filed the suit. Second, request "expedited discovery" in the case, allowing you to quickly secure the subpoenas necessary to go to Internet access providers and turn those 23,322 IP addresses into real names. Third, don't even bother to serve the subpoenas you just told the court were so essential to your case.

Federal Judge Robert Wilkins of Washington, DC this week blasted the conduct of Dunlap, Grubb, and Weaver, the attorneys behind the lawsuit, calling it "inexcusable." Dunlap, Grubb, and Weaver helped kickstart the current frenzy of P2P lawsuits last year after filing cases under the name "US Copyright Group." The 23,322-person case, their largest to date, involves the film The Expendables.

Two months after Judge Wilkins approved the subpoenas, they have still not been served; upset at this behavior, he has now revoked them. In explaining his decision, the judge said the delay was "especially surprising given the fact that one of Plaintiff's stated reasons for 'good cause' for the expedited discovery was that the ISPs typically retain the information that Plaintiff seeks only for a limited period of time… Plaintiff's delay in pursuing the discovery they requested on an expedited bases is inexcusable."

Further, the judge has realized that few of the IP addresses in question are likely to belong to DC residents; the plaintiffs admitted as much in a recent status conference. "The Court finds it inappropriate and a waste of scarce judicial resources to allow and oversee discovery on claims or relating to defendants that cannot be prosecuted in this lawsuit," said the judge.

Judge Wilkins will allow the case to proceed, but only if Dunlap, Grubb, and Weaver "show cause as to why venue and joinder is proper for all 23,322 putative defendants" by June 21.

More money in porn?

The case raises questions: if this is such a large and important case, why weren't subpoeanas even served? The plaintiffs argued, when asked about this at a June 2 status conference, that they had refrained because of issues the court had raised about venue and joinder. In other words, they were deferring to the court and not trying to rush ahead.

The judge wasn't buying it. In his June 7 decision, he noted that these issues hadn't been raised until May 25 and that the subpoenas had been granted back on March 17.

David Kerr, a Colorado lawyer who has worked with 250 different P2P defendants over the last year, has a different take: the settlement money in such cases comes mainly from porn videos.

Based on his experience, Kerr told me that "the settlement rate for porn films is about 80 percent, whereas for legitimate films it is usually less then 50 percent. Plus, all settlements for porn films are usually several hundred to thousand dollars more than for legit films. You can go to the public docket and see that all of Dunlap’s other cases besides the porn films are totally dead."

Under this theory, there's just not enough money in conventional films like The Expendables, an action movie starring Sylvester Stallone and assorted other tough guys. But people will settle in the case of porn to avoid embarrassment from being exposed.